Domestic Motion Practice: Thoughts and Scheduling

By:
Brendan R. Dennis

Brendan R. Dennis is an attorney licensed in Michigan, having graduated from Michigan State University College of Law in the spring of 2009. He currently works as a judicial law clerk for a judge in the family division of a state circuit court.

Domestic motion practice can be a little intimidating for a young attorney, especially one that has decided to begin their career by hanging up a shingle. The list below mainly deals with the scheduling of the various steps commonly taken through the motion process, with points to consider along the way.

1.Filing – The first step in the scheduling of any motion in a domestic proceeding would be, of course, to file one. The decision of whether or not to file a motion on behalf of your client is not one to be taken lightly. The ramifications can be both positive, such as obtaining the relief your client seeks, and sometimes negative, like stirring feelings of animosity between the parties. Thus, the merits of any motion should be considered carefully prior to any such filing.

If you do decide to file, one optional aspect of the filing process that is often overlooked by young attorneys is the idea of providing a judge’s copy of the motion to the Court’s office. Giving the Court a heads up of what relief you are requesting, and why you should receive it to begin with, can have the effect of truncating any arguments on the record. Additionally, if nothing else, you will certainly entrench yourself in the good graces of the Court’s law clerk.

Finally, if you are a young attorney in this economy there may be a pretty good chance you may take on a domestic case or two with a difficult to serve opposing party. If you are having trouble serving your client’s current or former partner with your motion, do not hesitate to file another type of motion: one for alternate service.

A successful motion for alternate service will typically allow tacking on the door of the other party’s last known address, or some other last ditch method of service, to be used in place of personal service or certified mail. Depending on your state, you will need to show some level of attempted service in order to acquire this relief. However, the sooner an alternate service motion gets filed, the sooner service can be completed so that the matter can be heard.

2.ADR – Alternative Dispute Resolution (ADR) can be a particularly advantageous avenue to pursue in motion practice. Often times the Court will not have time to hear the substantive arguments of the parties (a point discussed in more detail later), forcing them to return at a later date. This results in more time taken off work for your client, further schedule rearranging, and additional attorneys fees.

ADR can help the parties avoid all that. Many attorneys may not be willing to avoid the short-term lure of getting paid for their time, but billable hours can be sought elsewhere, and your client should appreciate the litigation they were able to avoid by coming to a resolution.

If your court does not offer to have mediators available to the parties, the Court would almost assuredly not have any issue with the parties attempting mediation on their own time. Many experienced family practitioners will offer mediation services, with some excelling in particular scenarios such as large estates, or issues with minor children.

3.Ex Parte Motions – Ex parte motions, those of an emergent nature, typically requiring a showing of irreparable damage or loss, that can be signed by the Court without a hearing. The keyword here is definitely “emergent,”as the Court will almost assuredly ask that the matter be set on as a motion in the regular course if the allegations made against the opposing party are anything less than quite serious. Some examples may be physical abuse against minor children, or asking for an order requiring that the child stay in county due to threats by the other party to quickly move without permission from the Court.

It is recommended that, if there is opposing counsel on the case, the other side be informed of the issue that led to the decision to file the ex parte motion, particularly if the petition is based on an event that has not yet occurred. This gives the other side a chance to speak to their client, and potentially nip the issue in the bud. The opposition does have the right to object to the ex parte order, but will assuredly appreciate your efforts to avert the need for Court action entirely.

4.Motion – If ADR does not result in an agreement between the parties, the motion will need to be argued before the Court. On a typical motion day, the trial court will have a busy docket, bogged down with many motions, some that will inevitably be similar to your own.

Nothing can be more important on a motion day, or for courtroom practice generally for that matter, than punctuality. Making sure both you and your client arrive to court on time can, and will often times, result in your case being heard quite quickly. Whether you are a young solo trying to make it on your own, or a young associate in a larger firm, your days are sure to be pressure packed. Since many mid-to-larger sized courts will have multiple judges hearing motions at the same time, effective time management will allow an attorney to take care of multiple clients while giving the care to each case that it deserves.

5.Hearing – More often than not in domestic proceedings, particularly if it a somewhat complex issue such as custody or domicile, the Court will not have the requisite time set aside to hear your motion, and will need to set the matter for a hearing.

Motions tend to lean a little more heavily on fact than law, but trial briefs should reverse that trend. Remember to keep your arguments concise and to the point, as the Court should allow time for oral argument. The Court, assuming the matter requires a quick resolution, will try to fit in a continuance on a near date if additional time is needed. However, the schedule may not always allow for that. If you happen to have a client itching for a quick resolution, it may behoove you to rely more on your written argument than your oral.

Additionally, domestic trial oral argument requires more substance than fluff. You are not trying to impress a jury here, but, rather, trying to convince the Court. You may need to put on a slight show for your client, but do not get carried away. Explain to your client prior to the hearing that there are no heartstrings of the Court you need to pull at to get your relief, but strictly the legal burden you need to hurdle.

6.Ruling/Settlement – Pre-judgment orders in domestic matters, of course, are temporary, with finality to the issues coming in either the form of a stipulated judgment, or following a trial.

For post-judgment matters, however, this is where the buck stops. It behooves all young attorneys to decipher the precise motives and expectations of their clients when dealing with post-judgment motions due to this finality. Attorney’s need their clients to understand that a post-judgment decision from the Court on a matter such as custody is not to be taken lightly, and will typically result in an order that will last for a number of years.

Fluid communication with your client, an understanding of your applicable law, and compliance with the court rules will all lead to a young attorney obtaining the ultimate goal; a content client.